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LIBRARY OF CONGRESS 



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Conservation Resources 

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SPEECH 



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HON. MILTON SAYLER, 



OF OHIO 



HOUSE OF REPRESENTATIVES, 



MARCH 3, 1875. 






WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 
1875. 



.Szr 






SPEECn 



HON. MILTON SAYLP]E 



The House bavins iiuder consideration tlie report of the select committee to in- 
quire into the condition of afiairs in the State of Arkansas — 

Mr. SAYLER, of Ohio, said : 

Mr. Speaker : I approach tlie discussion of tlie matter now before 
the House witli a full sense of its gravity and importance. It is no 
ordinary political question now pending for decision, and by no means 
a question that should be determined by mere considerations of party 
policy or by party prejudice and passion. It is a far-reaching ques- 
tion, involving the fundamental principles of our American system 
and atfecting the right of the people of a great and sovereign State 
of the Federal Union to make their own laws and to have them 
interpreted, applied, and executed by officers of their own choice. It 
is a question that forces upon the House directly the decision whether 
the government of a State which the people have almost unanimously 
adopted, in accordance with all law and precedent, and which is ad- 
ministered to the satisfaction of very nearly the entire body, with 
peace and quietness, shall be permitted to stand, or whether it shall 
be overthrown and destroyed and a government obnoxious to the 
people forced upon them by Federal arms and sustained by military 
power. I bespeak for this question, therefore, a fair and deliberate 
consideration, and shall endeavor to discuss it, not as a partisan, but 
as one who loves his country and seeks to do justice in his public acts. 
' The facts in this case, Mr. Speaker, are so fully and distinctly set 
forth in the report of the committee that I shall not repeat them, ex- 
cept so far as may be necessary for the purpose of the argument I 
propose to present. 

On the 27th day of May, 1874, a select committee was appointed to 
inquire into the disturbed condition of governmental affairs in the 
State of Arkansas, and all the facts relating thereto and the causes 
thereof, and whether said State has now a government republican 
in form, the officers of which are duly elected, and as now organized 
ought to be recognized by the Government of the United States. 

At the time of the passage of this resolution two different men, 
Joseph Brooks and Elisha Baxter, each claimed to be the lawful gov- 
ernor of the State of Arkansas ; each had surrounded himself with 
a military force and appealed to arms in vindication of his cause ; 
and each had applied to the President of the United States for aid. 
The Legislatiu-e, then assembled in extraordinary session, under the 



call of Elislia Baxter as governor, had also passed a joint resolution 
applying to the President to proteet the State against domestic vio- 
lence, and the President had issued his proclamation on the 15tli 
day of the same month recognizing Mr. Baxter as the lawful execu- 
tive of the State and commanding the insurgents to disperse and 
submit themselves to the lavpf ul authority of said executive. 

I propose to inquire, first, into the proj)riety of this recognition of 
Mr. Baxter on the part of the President, and what right or power to 
interfere beyond this exists either in Congress or in the executive de- 
jiartment of the General Government. Mr. Brooks and Mr. Baxter 
had been opposing candidates for the ofitice of governor at an elec- 
tion held on the 5th day of November, 1872, in accordance with the 
provisions of the constitution of 1868, adopted by the people of Ar- 
kansas under the reconstruction acts of Congress. Mr. Baxter was 
the candidate of the republican party and Mr. Brooks of what was 
known as the reform or liberal party, the democrats having no dis- 
tinct candidate of their own, but generally supporting Mr. Brooks. 
In accordance with the provisions of the constitution referred to 
above, the returns of this election were sealed and transmitted to the 
seat of government by the returning officers and directed to the 
presiding ofticer of the senate, which assembled in January, 1873, 
and who during the first week of the session thereof opened and pub- 
lished the same in the presence of the members then assembled. 
The result of these returns of the election for governor was declared 
to be, for Mr. Baxter, 41,684, and for Mr. Brooks, 38,726 ; whereupon the 
jiresident of the senate announced that Mr. Baxter was duly elected 
governor of the State of Arkansas. The oath of office was adminis- 
tered to him by Chief-Justice McClure, and he entered upon the dis- 
charge of the duties of the office and was fully recognized as governor 
by the Legislature of the State. He continued to discharge the duties 
of his office without qixestiou until the 19th day of the following 
April, after the Legislature had been in session three and a half 
months, and within six days of the adjournment thereof, when Mr. 
Brooks filed his petition, in accordance with the constitution and 
laws of the State, to contest the election of Mr. Baxter as governor, 
and praying for leave to introduce pi'oof. 

The provision of the constitution of 1868 in this liehalf is as fol- 
lows: 

Contested elections shall be determinptl by both houses of the General Assembly 
in such manner as is or may hereafter be prescribed by law. 

And the provision of the law in this behalf is : 

Sec. 100. All contested elections of governor, except as herein provided, shall 
be decided by the joint vote of both houses of the General Assembly. 

Sec. 101. If any person contest the eU'ction of irovernor, be sliall i)rosenthis peti- 
tion to the General Assembly, sittiiiir forth the points on wliich he will coiitist the 
same and the facts which he will prove in suj>j)ort of such points, and sliall pray 
for leave to introduce his proof ; and a vote shall be taken by yeas andiiays in eacu 
bouse whether the prayer shall be granted. 

The petition thus filed by Mr. Brooks, upon a motion that he shall 
have leave to introduce his proof, was rejected by the house of rep- 
resentatives by a vote of 53 yeas to 9 nays, notwithstanding the fact 
that thirty-six members of that body had been elected upon the ticket 
Avith Mr. Brooks and were identified with the party of which he was 
the candidate. 

It is soniewliat remarkable that the filing of this petition should 
have been so long delayed, and equally so that the vote should have 
been so nearly unanimous in support of Mr. Baxter and against 



Mr. Brooks. That Mr. l^rooks had stronj;' grouiul.s on which to con- 
test the election of Mr. Baxter there can be no reasonable donlit. 
The testimony abounds in a detail of most disgracefnl frands upon 
the rights of the people and ,npon the rights of Mr. Brooks as one of 
their candidates. These frands are the more fnlly developed, because 
those who had been the friends and partisans of Mr. Baxter, and by 
whom these frauds had been committed, had become his enemies, and 
came before the committee as willing witnesses, unblushingly divulg- 
ing the rascalities and outrages of which they themselves had been 
the iierpetrators, and by which they themselves, in one way and an 
other, in high station and low station, hoped to profit. 

The entire election machinery of the State — and it was perhaps as 
unfairly constructed by the constitution of 1868 as that of any State 
could possibly be — had been in the hands of the republican party, 
whose candidate Mr. Baxter was. The governor had appointed the 
registrars, and the registrars had appointed the judges and clerks of 
election in the various voting precincts ; and it is in many instances 
charged, by those who themselves had been the actors, that registra- 
tion was refused to large numbers, that large numbers properly 
registered were stricken from the rolls, that others were not allowed 
to vote, that the ballot-boxes were stufted, and that the returns 
were tampered with. The democrats and conservatives of Arkansas 
certainly had great reason to complain, for, as the report of the com- 
mittee well states — 

The whole proceeding by many of those havinij official charge of the registration 
voting, and returning the votes is characterized by the grossest unfairness and dis- 
honesty, and instead of an honest etfort to ascertain the will of the voters, they 
endeavored by every possible means to secure the ascendency of their own party 
friends. 

As a matter of justice to Mr. Baxter, however, T am compelled to 
assert that the testimony is singularly free from any evidence con- 
necting him personally with these frauds. He seems to have been 
then, as he proved himself afterward, an honester and truer man than 
some of his supporters supposed him to be. 

I have no disposition whatever to palliate or excuse these frauds, 
and the committee has had no disposition to conceal them in their 
report. I denounce them as a gross outrage upon the rights of the 
people of the State and upon the rights of Mr. Brooks, and as an ever- 
lasting shame and disgrace to the men who themselves perpetrated 
them, or caused them to be perpetrated by others. I must say, how- 
ever, that one's sympathy with Mr. Brooks is very much diminished 
by his i>resent evident alliance with the very men whom he charges 
with having cheated him out of his office, and through whom he most 
persistently seeks to perpetrate a greater outrage upon the people 
than was i>erpetrated upon himself — 

Eesolved to ruin or to rule the State — 
l)y his alliance with the very men for whom he had so great aflec 
tiou, that he is said to have declared publicly during the campaign 
if the people "would only elect him governor he would fill the peni- 
tentiary so full of them that their legs would stick out of the win- 
dows." 

But suppose these statements of frauds are all true, and suppose 
everything is true that is charged even by the bitterest enemies of 
the Baxter administration, what case does it present for the interfer- 
ence either of Congress or the President? It is after all but a case of 
contested election, and not at all diU'erent in its essential character 
from other cases of that kind. Mr. Brooks is not the only man that 
was ever counted out in a contest for governor; he is not the only 



G 

man who, by the frauds of those niauaging the elections, lias been 
cheated out of his just rights. Arkansas is not the only State in 
"which these things have been done. Frauds have been perpetrated 
in other States, and in other States cases of contested election have 
arisen. But that Congress has any power to interfere in such cases 
is too absurd a proposition for grave argument. Congress has no 
powers except under the Constitution of the United States. These 
powers are enumerated in the eighth section of the first article thereof, 
and it will not be pretended by any one that the right to determine 
the result of a State election is found among them. The proposition 
that any such right exists, and especially if there be added to it 
the right to enforce such determination by military power, would be 
utterly subversive of our whole system of government, and an utter 
annihilation of all the constitutional rights of the States. I do not 
believe that in this instance the representatives here assembled, 
under ]iolitical pressure of whatever kind, will establish a precedent 
so fatal and pernicious. 

Each State provides for itself a tribunal before which cases of this 
kind shall bedetermined. By the constitution of Arkansas, adopted 
in 1868, as I have already quoted it, and in which respect it resembles 
the constitutions of most of the other States of the Federal Union, 
the Legislature had been vested with complete and final authority in 
the premises ; and tlie Legislature having acted under this authority, 
their decision, whether right or wrong, is binding upon the State 
and upon the United States as well as upon the parties to the con- 
test, and cannot be called in question by the Federal Congress or 
the Executive, nor is it even subject to judicial review by the courts 
of the State. This latter proposition has often been held by the 
courts, and is as well established as any other principle : 

Contested elections, like all other controversies, must be submitted to the deter- 
mination of some competent tribunal, and, satisfactory or not, right or wrong, the 
decision must be sustained or tliere can lie no end to controversy aiul no settled 
government. It is far more important to the people that the executive power 
should be unquestionable than that any particidar person should wiekl it. 

This is a summary of the whole question made by Mr. Cooley, the 
author of the able work on constitutional limitations. 

When on the 19th day of April, 1873, Mr. Brooks filed his petition 
in the lower Iiouso of the General Assembly of Arkansas, contesting 
the election of Mr. Baxter", he acted entirely in accordance with the 
constitution and laws of the State. This was the manner of making 
the contest specifically prescVibed by the constitution and by statute. 
The adjudication then made was final and the mode of it exclusive. 
This adj udication once made, the courts of Arkansas could neither 
interfere with nor review. The books are full of authorities to this 
eliect, and I know of none to the contrary. In The State vs. Marlow, 
15 Ohio State Reports, 134, it w^as held that — 

A specific mode of contesting elections having been provided by statute, according 
to tlu> requirements of the constitution, tliatmode ah)ne cau bo resoi-tcd to in escbr- 
sion of t lie common-law mode of in(|uiring by proceedings in quo warranto. The 
statnti' wliiclx gives tlie siiicial rciiicdy and" prescribes the mode of its exercise 
binds I lie .State as well as individuals. 

So, too, in 28 PeuTisylvania State, 9, The Attorney-General vs. 
GaiTagues, and elsewhere in the decisions of that State, it was held — 

That when there are two claimants uiuler the same election for the same office 
which only one of them cau have, it constitutes a case of contested election, whicli 
is to be tried in the n»)dc specially provided for iu such cases, and not by the ordi- 
nary forms of judicial process. 



I need not refer to otlicr cases. The doctrine is well established, 
and has become part of the ordinary teaching of the text-books, that 
where jurisdiction is specially conferred by the Constitution and laws 
of a State upon other tribunals, and the mode of its exercise pre- 
scribed, it cannot be difterently exercised by a proceeding in quo war- 
ranto, as at common law, nor by the supreme court and district courts 
under a more general ground of jurisdiction in quo icarranto. But in 
this case we are not without the decision of the supreme court of the 
State of Arkansas itself. Mr. Brooks was not satisfied with the decis- 
ion of the Legislature in the manner prescribed by the constitution 
and laws of his State, but determined, against all precedent and all 
law, to push his case through the courts. Accordingly, after the ad- 
journment of the Legislature, on the 2d day of June of the same year, 
he procured the presentation of a motion for a writ of quo warranto 
to the supreme court of the State by the attorney-general upon his 
relation. The tiling of this motion was resisted, and after extended 
argument was, on the 4th day of June, denied by the court, though 
the written opinion was not hied until the 29th day of September. 
The refusal of the permission to file the petition for the writ was 
based upon the ground I have already suggested as general in such 
cases, that there was no jurisdiction in the court. To use the very 
clear and concise language of the judge who delivered the opinion : 

Under this constitution the determination of the question as to whether the per- 
ifon exercising the office of governor lias been duly elected or not, is vested exclu- 
sively in the General Assembly of tW State, and ncitlicr this nor any other State 
court has jurisdiction to try a suit in rclatiou to sucli cimti'st, be the mode or form 
vrh.at it may, -whether at the suit of tlie attorney-general or on the relation of a 
claimant thidugh him, or by an individual alone' claiming' a light to the oflBco. 
Such issue should lie uu^de before the General Assembly; it is their duty to decide, 
and no other tribunal can determine that question. We are of the ojiinion that 
this court has no jurisdictiou to lu'ai- and determine a writ of quo warranto for the 
purpose of reudeiiug a judguu'ntof ouster againstthe chief executive of this State, 
and the right to lile the information and issue a writ for that purpose is denied. 

To this opinion Judge McClure dissented. 

It has been charged that the judgment in this case was extorted 
from the court by threats and intimidation of the governor and by 
the presence of armed men ; but the facts in the testimonj^ not only 
do not show this to have been true, but affirmatively show that the 
charge is entirely without foundation. More than that, the decision 
is in entire accord with all the decisions of the courts of other States 
upon similar questions, and there is no allusion to any intimidation 
whatever in the long and elaborate dissenting opinion of Judge Mc- 
Clure. There was no necessity for the court to take any action if they 
were apprehensive of any interference with the dignified and inde- 
pendent discharge of their high prerogative. They might have re- 
mained silent. Furthermore, the testimony of Judge Gregg expressly 
disclaims any impression made by military interference. 

The judgment of the court referred to above is elaborately dis- 
cussed and fully sustained by the Attorney-General of the United 
States in his opinion addressed to the President on the 1.5th day of 
May, 1874, and shortly after it was rendered it was affirmed in the 
case of Wheeler vs. W'hytock, known as the " prohibition case." On 
the 1st day of October, 1873, Stephen Wheeler tiled a petition in the 
supreme court of the State of Arkansas for a writ of prohibition 
against the circuit judge, John Whytock, commanding him to re- 
frain from considering further a case for the recovery of the office of 
auditor of the State. This case grew out of the same election as the 
case of Brooks against Baxter, and the facts were identical. The su- 



preme court affirmed iu direct terms the decision given in the cose^l: 
Brooks against Baxter and granted the writ, all the judges conciu-- 
riug iu the reasoning upon this point. Even Chief Justice McClure, 
who had dissented in the former opinion, uses the folio wing language: 
As to all matters of contested election for the offices of governor, Ueutenant-gov- 
emor, secretary of state, auditor, treasurer, attorney-general, and superintendent 
of public instruction, I am of the opinion tliat it can only be had before the General 
Assembly. I do not believe the Legislature intended to'givethe circuit court juris- 
diction oi contested elections, which, by the constitution, were cognizable only be- 
fore that body. The right to an office comes from the people, and they have the 
unquestioned power to determine and prescribe the terms upon which it may be 
enjoyed. "When the office of auditor was created, the people declared, as they had 
an u.nquestionable right to do, that a contest for it shoiihl only be made before the 
Legislature. To hold that the circuit court has no Jurisdiction is not denying the 
plaintiff in the coiu-t below a remedy, nor is he in any manner deprived of a consti- 
tutional right. • 

And Judges Searle and Stephenson, in the same case, use the fol- 
lowing language : 

The office of auditor being one of those enumerated in the constitution in connec- 
tion with that of governor, as one the contest for which shall be detennined by the 
General Assiiubly, we are clearly of opinion that this case falls within the rulesof 
decision laid ilow n iu the case cited above. It is true there exists in the case of the 
governor a statutory mode of procedure Ttlative to such contest, but it is idle to 
insi.st that because the Legislatuic has failed to provide the mode by which the 
right to the other offices, mentiom-d in section 19 of article 6 of the constitution, 
that this neglect on the part of the Legislature can vest the courts with jurisdic- 
tion to determine such a contest. If that body had ever desired to do so, and had 
in terms enacted a law conferring upon the couits of the State the jurisdiction to 
trj' and detennine such cases, it would have been wholly unwarranted by the or- 
ganic law, and must, necessarily, have been so decided. The trial of the right to 
these offices is, in terms, enioined upon another department of government, and 
must be exercised by it ; and the attempt to impose the duty upon the courts would 
be as much a violation of the constitution as a failure to perf onn it altogether. 

These two opinions are direct and conclusive of the whole subject- 
matter. Under the decisions of the Supreme Court of the United 
States (2 Peters, 492; 1 Wallace, 175j they are binding upon the 
legal tribunals of the State and upon all the legal tribunals of the 
country, and even itpon the Supreme Court of the United States 
itself, and were so recognized by the Attorney-General in his elabo- 
rate opinion to the President referred to before. In Arkansas they 
were acquiesced in by all parties in the State. A case that had pre- 
viously been brought by the Attorney-General in the Pulaski circuit 
court, under section 525 of the Arkansas code, was promptly dis- 
missed. All parties regarded the question as settled. Even the 
republican State central committee issued an address on the 8th day 
of October, 1873, congratulating the people on this settlement of all 
vexed questions, and using the following words : 

By the decision to which reference has been made it is distinctly held that the 
determination of the (lui-stiou wlietlu-i- a pci-son exorcising the office of governor 
has been duly tdecttd or not, is vested exclusivelj' in the General As.sembly of the 
State, and that neither tln^ supreme nor any other State court has jurisdiction to 
tiy a suit in relation to such contest, be the mode or form what it may, wlietlur at 
thie suit of the attipiniy-general, or on the relation of a claimant through him, or 
hy an individual aloiu' claiining a right to the office. This decision was jiroiriptly 
fdlldWiMl by till- dismissal of tlic- suit bi'dught in tin- circuit court of PuhisUi ( 'ounty 
by the Stale of ArUausas against Klislia Uaxtcr, and now at last we can congratu- 
late tlie people of the State upon the undoubted termination of this gubernatorial 
warfare. U'he Legislature ha.s acted in the i)remises ; its deci.sion is final ; and Gov- 
ernor Baxt^T's tenure of the office he holds is tixi^l and irrevocable. The action of 
the supremo court and the Legislature settles all vexed questions calculated to 
disturb the peace of tlie State; and Governor Baxter, retlecting the policy of the 
republican party, to secure peace, quiet, and order, seized u))on this, the first 
opportunity presented since the organization of the State government, to muster 
out tixe entire militia force of the State, 

Xo well-disposed citizen, whatever his political faith may be, can fail to indorse 



nd comineud this action of the governor. It attests the good faitli ami liigh pur- 
poses of the re])uhlicaii iiartvonall questions aflectiiiii' tlu' iutci-est-s of tlie j.eoph^, 
and is an eaviit-st of tlie elUu'ts tliat (Jovernor liaxter and tlie repuhlieau party are 
makins to brin^ tlie State of Arl^ansas to as Iii-li a eouditiou of peace, hiw, and 
order as is enjoyed by the most favored State in the Union. 

All citizens are tlit'refore called upon to pres.rve peace in their respective local- 
ities. Let no man be ieopardized in property or life. Lot the expression of opin- 
ion on matters of public concern be free and unrestrained, and the laws vigorously 
aud impartially enforced. 

This address is signed by Powell Clayton as chairman, and by 
Stephen W. Dorset as one of the members of the committee, now 
aud then Senators of the United States from the State of Arkansas. 

But Mr. Brooks was still not satisfied, notwithstanding the direct 
decision of this contest by the General Assembly of the State and 
notwithstanding the explicit decision of the supreme conrt that 
neither it nor any other conrt of the State had jurisdiction in the 
case ; aud on the 16th day of June he entered a suit for the office of 
governor aud the emoluiuents thereof in the Pulaski County circuit 
court, under the following provisions of the code of Arkansas : 

"WTienever a per.son usurps an office or franchise to which he is not entitled by 
law, an action by proceedings at law may be instituted against him by the State or 
the party entitled to the otlice or franchise, to prevent the usurper from exercising 
the oflice or franchise. (Code of Practice, 525.) 

To this action, on the 8th day of October, 1873, and after the filing 
of the written opinion of the supreme court in the case of Brooks 
against Baxter, a demurrer was interposed. This demurrer was not 
considered until six months afterward, aud the case was allowed to 
sleep until on the 15th day of April, 1874, in the absence of Baxter 
and his counsel, at a time when the bar generally understood that no 
business during the week woitld be taken up, after a similar case 
brought by the attorney-general before the same court had been 
dismissed, and in utter and reckless disregard of the decision of the 
supreme court, upon the pretense of the submission of the demurrer, 
this judge of a mere circuit court, whose judgments are subject to 
revieV and bound by the decisions of the supreme court, overruled the 
demurrer to the jurisdiction, aud immediately rendered judgment of 
ouster against Baxter, and declared that the contestant, Brooks, was 
entitled to the office of governor of Arkansas. This, too, upon 
the determination of the technicality of the jurisdiction, Avithout 
testimouy heard on the (|uestion of the contest for the office of the 
chief executive of the State; this, too, iu direct violation of the 
laws of Arkansas, that upon the determination of the demuiTer " the 
party demurriug may answer or reply ; " this, too, after the decision 
of the supreme court upon the same question, and between the same 
parties, the quo warranto case haviug been at the relation of Brooks. 
And this actiou was taken under the pleat! iugs filed in the case upon 
the ground that Baxter had usurped the office which he held. 

Whatever may be the facts with regard to the election of 1872, what- 
ever frauds may have been perpetrated, and however clearly it might 
suljsequeutly be shown that at that election Brooks received a higher 
number of votes than Baxter, yet Baxter can in no possible legal 
sense be regarded as a usurper. He held his office under all the forms 
of law. A nsiu-per is one who seizes an office without right or holds 
it without color of title. 

Of this action of the circuit judge the Attorney-General well says 

That this circuit court should have rendered a judgment for Brooks under the,' e 
circumstances is surprising, and it is not too much to say that it presents a case of 
judicial insubordination which deserves the reprehension of every one who does not 



10 

•wish to see public confidence in the certainty and good faith of judicial proceedings 
wholly destroj-ed. 

It is well enough to add here that even in this very case relied on 
by Brooks as establishing his right to the office of governor, taken 
from the Pulaski circuit court on certiorari to quash the judgment 
declaring Brooks governor of Arkansas, the supreme court of that 
State has recently decided that this circuit court had uo jimsdiction 
over the subject-matter nor of any of its incidents, and that its pro- 
ceedings and judgment were void, and that the judgment must be 
quashed. Yet upon this decision thus rendered by the circuit court, 
and claiming that the judgment executed itself, Mr. Brooks, in April, 
1874, immediately proceeded to the State-house, and unlawfully and 
with force ejected Mr. Baxter, and took possession of the office and 
records. Then it was that the two parties surrounded themselves 
with armed forces ; then it was that those terrible scenes of violence 
and bloodshed began which have disgraced the State; and then it was 
that the two parties made their application to the President for relief 
against domestic violence. 

Matters remained in this condition until the 11th day of May, 1874, 
when the Legislature, convened in extraordinary session under the 
proclamation of Governor Baxter, recognized him as governor, and 
passed a joint resolution calling upon the President for protection ; 
and accordingly, on the 1.5th day of the same month, the President 
issued his proclamation recognizing Baxter as the lawful governor 
and commanding the insurgents to disperse. That proclamation is in 
the following words : 

Hy the President of the Vnited States of America. 

A PKOCLAMATION. 

Whereas certain turbulent and disordeily persons, pretending that Elisha Bax- 
ter, the present executive of Arkansas, was not elected, have combined together 
with force and arms to resist bis aiitliority as such executive, and otlier aiitlioiities 
of said State; and wliereas said Klislia Baxter has been declared duly elected by 
the General Assembly of said State, as provided in the constitution thereof, and 
has for a long jieriod becu exercising the functions of said otHce into whichhe was 
inducted according to the constitution and laws of said State, and ought by its 
citizens to be considered as the lawful executive thereof ; and whereas it is pro- 
vided in the Constitution of the United States thattlie United States shall protect 
every State iu the Union, on apidication of the I^egislature. or of the executive 
when the Legislature cannot be convened, against <lonu'stic violence ; and whereas 
said Elisha Baxter, under section 4 of article 4 of the Constitution of the United 
States, and the laws passed in ])ursuaiu'(^ thereof, has heretofoi-e made application 
to me to protect said Static and the citizens thereof against domestic violence; and 
whei-eas tlie (lem-ial Assembly of said State was convened in extra session at the 
capital thereof on the Uth instant, purs\i;int to a call made by said Elisha Baxter, 
and botli houses thereof have passed a joint resolution also applying to me to pro- 
tect rhi' St;ite against domestic violence ; and whereas it is ]ii'ovided iu the hiws of 
the United States tliat in all cases of insurrection in any State, oi- of olistruetion 
to the laws theT'eof, it sb;ill bo lawful for the President' of the United States, on 
application (rf tlie Ij^ishiture of such State, or of the executive when the Legisla- 
ture cannot be <'on vened, to employ such part of the land and nau«l forces as shall 
be judged n(>cessary lor tlie pnrpose of suppressing .such insurrection or causing 
thi^ laws to be duly executed; and whereas it is required that whenever it may be 
necessary, in the judgment of tlie President, to use the military force for the pur- 
]H)so aforesaid, he shall forthwith by proclamation commaTui sucli insurgents to 
tlispeise and retire ])eaceabl.y to their respective homos witliin a limited time: 

Xow, tlieiefoi-e, 1, Ulysses S. Grant, President of the United States, do hereby 
make ]>rochuniition and command all turbulent and disorderly persons to disiierso 
and retire peaceal)ly to tlieir respective abodes within ten days fiom this date, and 
In^reafter to suhniit tliemsi'lves to tlio lawful authority of s;iid executive and tlie 
other constituted :iuthorities of said State ; and I invoke the aid and co-operation 
of all good citizens thereof to uphold law .and preserve pu die peace. 

In witness whereof I have lu^reiinto set ray hand nud caused the seal of the 
United States to be alhxed. 



11 

Done at the city of "Washington, this 15th day of May, in the year of our Lord 
1874, and of tlie Independence of tlie United States th&'ninety-ci<rhth. 

U. S. GRANT. 
By the President : 

Hamilton Fish, 

Secretary of State. 

That the President was entirely right in the position taken by him in 
this proclamation there can he no reasonable doubt. Baxter had been 
declared elected by the presiding officer of the senate, and had been 
inducted into office in all due and legal form. He had been recognized 
as governor by the Legislature of the State, which had submitted to 
him all its enactments for approval or rejection. He was likewise 
recognized as governor by all the other officers of the State, and the 
subordinate officers in the State and in the counties were discharg- 
ing their duties under commissions received from him. He had been 
recognized as governor by the supreme court of the State, and with 
general consent and acquiescence he had discharged all the functions 
of that office for a period of sixteen or seventeen months. Under these 
circumstances, that he was not a usurper but governor de facto there can 
be uo possible question. I cannot conceive of a stronger case. Acting 
under this high color of authority his acts are valid and binding 
upon all, even though in point of fact he may not have received the 
highest number of votes at the election. (The people vs. Cook, 14 
Barbour, 259 ; Ohio vs. Jacobs, 17 0. R., 151 ; Trustees of Vernon vs. 
Hills, 6 Coweu, 23.) This would simply present a case of contest 
to be decided by the State authorities, and until it is so decided 
adversely to him by a proper tribunal he remains the true aud law- 
ful executive of the State. 

That decision as we have already seen in this case had been made. 
The Legislature of the State had solemnly passed upon the question 
in accordance with the constitution and laws, and from that date and 
at the time of his recognition by the President Mr. Baxter was not 
only de facto but de-jure governor of Arkansas. It was not the duty 
of the Pi'esident and it is not within the power of Congress to decide 
the contest between Brooks and Baxter upon its original merits. 
Neither the one nor the other has in any way been constituted a 
tribunal for that purpose. The President could do nothing as Con- 
gress can do nothing but recognize the existing status. Baxter had 
been declared elected, had for a long time discharged the duties of 
the otHce, had been sustained in the contest before the Legislattire, 
whose decision was recognized as final aud conclusive by the supreme 
court, and the President could not do otherwise nor could Congress 
do otherwise than recognize him as governor, notwithstanding the 
decision of an inferior court and which was also void for want of 
jurisdiction. The President Avas so advised at the time by the Attor- 
ney-General of the United States, who stated explicitly in his opinion 
that — 

When the people of a State declare in their constitution tliat a contest hy State 
officers sliall bo detiTiiiiiicd liy tlin (u'licral Assfiiiblv, they cannot be understood 
as meaning it might be ib_-tcriui>ie(l in any ciicuit coiirt of 'tlic State. To say ttiat 
a contest shall be decided by a decision, aiid then to say after the decision is made 
that such contest is not deteiinined, but is open as it ever was, is a contradiction in 
terms. Brooks appears to claim that when a contest for Governor is decided by 
the General Assemblj', the defeated party may treat the decision as a nullity and 
proceed de novo in the courts. This makes the constitutional provision as to the 
contest of no effect, and the proceedings under it an empty form. When the house 
of representatives dismissed the petition of Brooks for a contest, it must be taken 
as a decision of that body on the questions presented in the petition. Doubtless 
the makers of the constitution considered it unsafe to lodge in the hands of every 
circuit court in the State the power to revolutionize the executive deiiartment at 



12 

■will; anil tliiir wisdom is forcibly illustrated by tlie case under consideration, in 
wliich a person wlio bail l)een instalb'das i;overnor accordinn to tbe constitution 
and laws of tlie State, after an undisturbed iucunibeiicy of more tban a year, is de- 
posed by a circuit indue, and auotber iiersnn i)ut in liis ]ibice u]mn tbe nnsn)i]>orted 
statement of tbe latter tbat be bad jeceived a niajoiity of votes at tlie election. 
Looking at the constitution alone it ap])ears perfectly clear to my mind tbat tbe 
courts of tbe State liave no rijiiit to try a contest al)out tbe otiicc of covernor, but 
tbat exclusive jurisilietion over tluit i|uestion is vested in tbe (icneial Assem1>ly. 
Tliis view is contiruied l)y judicial authority. (See opinion of Attorney-General, 
Executive Document No. 51.) 

I cannot close this part of my argument, sustaining the action of 
the President and showing tlie validity of Mr. Baxter's title to the 
office of governor, without (luoting the peculiarly apiio.site words of 
one who stands deservedly high in the councils of the republican 
l)arty, and Avho upon another occasion and referring to another mat- 
ter " presented the consideration that this question involved a great 
fundamental principle vital to the existence of our Government, 
which was, that where a question arose under a State law or under 
a State constitution, it was to be decided by the State tribunals ; and 
that the decision of the tribunals of the State upon questions arising 
under their own laws was binding not only upon the people of the 
State but upon the Government of the United States ; that this was 
the necessary result from our form of government ; and that any alleged 
irregularity, or, if yon please, fraud in a State election in the election 
of ;i giiviTiior or of a State Legislature was cognizable and was de- 
terminable by the tribunals of the State, and when the State tribu- 
nals had passed upon such questions their decision was binding upon 
the Government of the United States ; and that if the Government 
of the United States assumed to go behind the decision of the State 
tribunals to examine into the questions arising in a State election 
under State laws, if it assumed the right to set aside a State gov- 
ernment because of alleged frauds or irregularities in a State election, 
the assumption of such power was the end of the State governments, 
and placed every State government in this Union at the will and 
caprice of the Government of the United States, and that State gov- 
ernments thereafter would exist only by suflerauce." 

Such, Mr. Speaker, was the condition of affairs in Arkansas up to 
the time of the appointment of the committee, and such are the 
grounds justifying the action of the President in his recognition of 
Mr. Baxter as the lawful governor of the State. 

I come now to consider important events which have occurred 
since that time in that State, and which have resulted in the adop- 
tion of a new fundamental law, the election of new officers, and the 
establishment of a general condition of peace and harmony throughout 
the State. 

At the extraordinary session of the General Assembly of the State 
which met, as before stated, on the 11th day of May, 1874, there 
was passed an act providing for a convention of the people of 
the State of Arkansas to frame a ncAV constitution, and providing 
for the submission of the question of its adoption to a vote of the 
people. This election was held on the 30tli day of June, 1874, and 
resulted in a vote of 80,2.59 for the convention and 8,607 against the 
convention, being a majority of 71,652. Tlie delegates Avho were 
elected at the same time met in convention at the city of Little 
Rock on the 14th day of July following, and proceeded to frame a new 
constitution for the State, which was submitted to a vote of the 
people on the i:?th day of October, 1874, and ratified by a vote of 
78,697 in its favor to a vote of 24,807 against it, being a majority for 
the new cou.stitutiou of 53,890. At this same election were also 



13 

cliosen all tbe officers provided for under the new coustitntioii, and 
including theStiite, district, county, luid township officers, and mem- 
bers of the General Assembly. A. H. Garland was the , conservative 
candidate for the office of governor, and received a vote of 76,453. To 
Mm there was no opposing candidate. The other candidates on the 
same ticket received about the same number of votes. The Legisla- 
ture chosen at this time assembled at Little Eock on the 11th day 
of November, 1874, when Mr. Garland was duly inangiTrated as gov- 
ernor, and all the State, circuit, county, and townshi]) (iflicers, chosen 
at the same election, entered upon the discharge of their duties. All 
the former officers gave way peaceably to those who were thus 
chosen under the new constitution with the single exceiition of Vol- 
ney V. Smith, who had been elected lieutenant-governor on the same 
ticket with Mr. Baxter in 1872, and who at the time of the retirement 
of Mr. Baxter and the inauguration of Mr. Garland, issued a jirocla- 
mation calling upon the people to support and obey him as governor. 
He also made an appeal to the President for military power to enforce 
his pretensions, to which appeal no attention seems to have been 
paid. Friends who urged him to this foolish course seem all to have 
deserted him ; no one has appeared before the committee in advocacy 
of his claims ; no one pretends that he has any claims; and his unwise 
and absurd assumption of right seems to have fallen into merited 
contempt. 

There can be no pretense raised from the facts in the case that the 
call for the constitutional convention was not made, and the consti- 
tution as framed by that convention adopted, and the officers provided 
for under it chosen, not only by a very large majority of the vote 
cast, but by a very large majority of the legal voters of the State. 
There is no pretense, indeed, of unfairness in either of these elections, 
or that the announced result is not substantially correct. The only 
objection iirged to the election adopting the new constitution and 
choosing the officers provided for under it was that the formerly 
existing registration and registration and election officers had been 
set aside and new ones created. Whatever may be said of the pro- 
priety or impropriety of this change of registration and election 
officers, yet those who served as such officers at this election were cer- 
tainly officers de facto, and as such all acts done by them were good 
and valid. Acting under this color of authority their acts were bind- 
ing, even though we may admit the most extreme position of the other 
side, that in point of law and right they were no such officers. It is 
not disputed that both of these elections were a fair and full expres- 
sion of the will of the voters, and, consequently, the technical objec- 
tion to the character of the election officers, under all the decisions 
of our courts, falls to the ground. (See 8 New York, 67 : 11 O. S. K., 
511 ; 6 Cowen, 2.3 ; 12 O. S. R., 16.) 

But deeper and more important objections were urged to the va- 
lidity of the new constitution and of the State government organized 
under it. It is claimed, in the first place, that Governor Baxter at 
the time of issuing the call for the convention which framed the 
constitution of 1874 was neither de jure nor de facto goA'crnor of the 
State, and consequently that no rightful and lawful authority ex- 
isted in him to issue such call. This objection has been fully an- 
swered in the preceding portion of my argument, in which I have 
shown that he was in the highest sense governor de facto et de jure, 
not only exercising all the duties of the office of governor and de- 
clared to be such by the solemn adjudication of the General Assem- 
bly of the State, but also recognized as such by the President of the 
United States. 



14 

It is also claimed that the Legislature itself, which convened on 
he 11th day of May, 1874, and passed the act providing for the sub- 
mission to the people of the question of calling a convention to revise 
the constitution, was not a lawful body, and consequently that its 
proceedings were void. The objection more particularly urged against 
it is the fact that subsequent to the election in 1872 and during aud 
subsequent to the session held iu 1873 between forty and fifty of its 
members had been appointed by the governor to executive offices 
and their places filled at a special election held on the 4th day of 
November, 1873. 

It is not disputed that the governor under the constitution had 
entire authority to make these appointments. Indeed, this large 
appointing jiower vested by the constitution of 1868 in the chief 
executive was one of its most glaring defects, and one which the 
people had long desired to have remedied. It is not disputed that 
the appointments were made, and that the offices were accepted by 
these several members, uor that the persons accepting them were 
ineligible under the constitution to have a seat in either branch of 
the Geueral Assembly. It is not disputed that in case of a vacancy 
occurring in either house it is made the duty of the governor, under 
the laws of Arkansas, to issue a writ of election to fill these vacancies. 
It is indeed urged that there was no evidence of the election of the 
members who appeared to fill vacancies. This objection is based 
upon the assumption that, Mr. Brooks having seized the archives of 
the State and retained them in his possession, no sufficient data could 
be reached to determine who had been elected. It is a sufficient 
answer to this that the secretary of state, in accordance with the law, 
made out the lists of elected members, and returned them to each 
house, giving the members thus returned a prima facie right to their 
seats, and which lists, upon comparison with the records in the office 
of the secretary of state subsequently recovered, are found to be 
entirely correct. The members thus chosen at the special election 
appeared at the extraordinary session, presented their credentials, 
and were admitted to seats in the upper and lower houses respect- 
ively. The constitution of Ai-kansas then in force, like the constitu- 
tions of all the other States, provided that "each house should deter- 
mine the rules of its proceedings, and judge of the qualifications, 
election, and return of its members." No contest arose as to the seat 
of any one of the newly-elected members, and of the former members 
who had accepted other offices no one appeared to assert his right to 
a seat in the Legislature. This, under all law and all the usages of 
all the States, was iiual and conclusive of the whole matter. 

There is no evidence whatever and no claim made of fraud at the 
election of these new members. The election seems to have gone 
pretty much by default, no one supposing at the time that the Legis- 
lature would be convened in extraordinary session. 

It is also urged against the validity of the acts passed at this ex- 
traordinary session that the Legislature met within the military lines 
of Governor Baxter. This was indeed true during the early part of 
the session. But there is no evidence of any attempt being made to 
control the action of the Legislature by the military power, nor to in- 
terfere in any way with the attendance of the members. I cannot 
do better than quote the words of the report : 

As to the fact of the existence of martial law, and that the Legislature met within 
Baxter's lines tlie ((unniittoe liave to say that altlioufrli these eireuinstanees cannot 
1)6 cousitlereil as favdiahlc towisc and caictiil Ictiislation, still as no attcnijit ajipears 
to have heen made to iinvcnt the attendance of iiicioliers, or to contr(d in any way 
their action by military force, they do not consider these facts autlicient to deprive 
the acts of that Legislature of the "ordinary force of such action. 



15 

There was do other body of men in Aik;iii.siis chiiiiung to be the 
Legishitnre of the State except that body choseu at the election of 
1872, which first assembled in January, 1873, and subsequently in ex- 
traordinary session in May, 1874. There was no contest between 
rival Legislatures to decide. This was the only body claiming to act 
in that capacity. All attempts to question the validity of its acts 
seem puerile and absurd, and no such attempt has been made as to 
any other one of its acts, except the single one of the submission to 
the people of the State of the question whether they would revise 
their fundamental law. Its members passed laws which were signed 
by the governor, construed by the courts, and obeyed by the people. 
They elected a United States Senator, who was received without 
question, and now occupies a seat in that body equally with the Sena- 
tors from Ohio or the Senators from Massachusetts. There is a gen- 
eral and continuous recognition of it as the Legislature of Arkansas. 
It discharged all the functions of such a body, and its right to do so 
was never otherwise called in question. No power can now examine 
its organization or question the validity of its action. 

There can be no question, therefore, as to the validity of the act of 
Mr. Baxter as governor of the State of Arkansas, calling the extraor- 
dinary session of the Legislature in March, 1874, and there can be 
no question as to the validity of the act of that Legislature sub- 
mitting the matter of the formation of a new constitution to a vote 
of the people. 

I come now to consider what might be regarded as the most impor- 
tant objection to the validity of the constitution framed by the con- 
vention oi'ganized in the manner I have indicated, were that question 
a new one, and had it not already been settled by the decisions of the 
courts and the usages of the States for a period of more than a half 
century. 

It is objected that the constitution of the State could neither be 
altered, amended, nor revised, except in the manner expressly pre- 
scribed in the then existing constitution, and that consequently the 
mode adopted for its revision in this instance was revolutionary and 
void. Article 13 of the constitution of 18(58 provides that " amend- 
ments to this constitution may be projjosed in either house of the 
General Assembly, and if the same shall be agreed to by a ma- 
jority of the members elected to each of the two houses, such proposed 
amendment shall be entered on their journals, with the yeas and nays 
taken thereon, and referred to the Legislature to be chosen at the 
next general election, and shall be published as provided by law for 
three months previous to the time of making such choice. If in the 
Genei'al Assembly so next chosen as aforesaid such projjosed amend- 
ment or amendments shall be agreed to by a majority of all the mem- 
bers elected to each house, then it shall be the duty of the General 
Assembly to submit such jiroposed amendment or amendments to the 
people, in such manner and at such time as the General Assembly 
shall provide. And if the people shall approve and ratify such amend- 
ment or amendments by a majority of the electors qualified to vote 
for the members of the General Assembly voting thereon, such amend- 
ment or amendments shall become a part of the constitution of this 
State." This constitution is silent as to any other method of amend- 
ment, alteration, or revision ; and it is claimed by the enemies of the 
new constitution that no other method could therefore be adopted, 
on the principle of the maxim e.qyresnio unius est exclusio altenus. But 
the courts have always held that this maxim is not applicable to the 
provisions of a constitution, and applies rather to deeds and contracts 
between private individuals. 



16 

Sovereign riglits cauuot be disposed of in tins way. The will of 
the people cannot be thus hampered in an instrument of limitations. 
It is contrary to the whole theory of the American system of govern- 
ment. The specific mode set forth in the Constitution for its amend- 
ment is permissive merely, and not mandatory or exclusive. A rea- 
sonable construction of the thirteenth article would be that it was 
intended to be coutined to changes which are simjile or formal, of 
small importance and few in number, and that it was not intended 
as a method for a general revision, or even as a method for effecting 
single, important, and radical changes in the fundamental law of the 
State. Notwithstanding the presence of a specific mode of amend- 
ment in the constitution of any State, the power is still inherent in 
the people to amend and revise it, through the medium of a constitu- 
tional convention. That this power exists and abides with the peo- 
ple of any State, without an express affirmation of it in their fun- 
damental law, is a principle as well established by the decisions of 
the courts and the law and usages of the country as any other prin- 
ciple of our Government. Indeed, it is a fundamental jirinciple. 
Says Mr. Webster : 

The people are the source of all political power. 

Says Mr. Justice McLean : 

The theory of our political system is that the ultimate sovereignty is in the 
peojile, from' whom springs all legitimate authority. (1 McLean, 347.) 

And again : 

The States are equal, inasmiicli as each has hy its own voluntary will estab- 
lislied its own government and has the power to alter it. This is the principle 
ujion wliicli State governments are estalulished, and consequently they all stand 
upon an equal footing. Tliey have the same basis, have been framed according to 
the will of the people, and niay be changed at their discretion. (1 McLean, 348.) 

The same principle is directly affirmed in the first section of the bill 
of rights of the constitution of Ai'kansas of 1868, in these words : 

All political power is inherent in the people. Government is instituted for the 
pi-otection, security, and benefit of the peoi)le, and they have the right to alter or 
reform the same whenever the public good may require it. 

It being impossible, however, for the people to meet in one place 
and act without organization, and this power to alter and reform 
their government being inherent, the question arises, how can they 
act to this end ? To this I answer that the method adopted by the 
usage of the States almost from the beginning of the Government is 
that of the constitutional convention, convoked and assembled by 
the call of the people through the agency of the Legislatiu-e. 

Says Mr. Webster again : 

Wliim in the course of events it becomes necessaiy to ascertain the will of the 
people on a new exigency or a lunv state of things or of opinion, tlie legislative 
power jirovides for that ascertainment by an ordinary act of legislation. 

Mr. Cooley, in his able work on Constitutional Limitations, (page 
30,) lays down these two propositions as settled principles of Ameri- 
can constitutional law: 

1. In the original States and all others sub8ec(uently admitted to the Union the 
power to amend or levise their constitutions residesin'the great body of the ])eo])le 
as an organized tioily-jiolitic, wlio, being vested with ultimate sovereignty and tlie 
source of all Slate authority, have powi'r to control and alter tlii^ law which they 
have made at tlieir will. I'.ut the people in the legal sense nuist be understood to 
be those who tiy the existing (•oustituti<m are clothed with political rights, and who 
while that instiiiiiient iciiiains will be the sole organization through which the wiU 
of the body politic can be ex))ressed. 

2. But the will of the people tx) this end can only be expressed in legitimate 
modes by whieli such a liody-politic can act, and which must either bo prescribed 
by the constitution whose revision or .'imendment is sought, or by an act of the leg- 



17 

islative department of the State, which alone wonhl be authorized to speak for the 
peoj)le upon this subject and to point out a mode for the exjiression of their will in 
the absence of any provision for amendment or revision contained in the constitu- 
tion itself. 

It is not necessary to stop here to discuss two very interesting 
questions that might arise, to wit, the effect of an absolute proiiibi- 
tiou against alteration or amendment save in the manner prescribed 
by the constitution itself, and the validity of an alteration which 
has been sanctioned by the people after a fair and orderly submission 
provided by the legislative power without any other form or cere- 
mony whatever, even though the fundamental law has prescribed a 
different mode by which amendments may be made and which has 
uot been followe'd. Very einineut authority maintains the power of 
the people as against either prohibition or direction. The questions 
do not arise in this case and therefore need not be discussed ; but we 
are emphatic that the people, convoked by the legislative authority 
of the existing government, have the inherent power, through the 
agency of the constitutional convention, to alter or reform their con- 
stitution, even though that constitution not only does not specifically 
give the power and does provide a specific manner in which amend- 
ments to it may be made. 

Twenty-five conventions in the several States of Georgia, South 
Carolina^ New Hampshire, New York, Connecticut, Massachusetts, 
Rhode Island, Virginia, North Carolina, Pennsylvania, New Jersey, 
Missouri, and Indiana, iinder the general legislative power of these 
States, without the special authorization of their constitutions, have 
been called by the people between the years 1789 and 1850, and how 
many have l/een so called in these and other States during the last 
quarter of a century I know not, but do know that it has become a 
well established and settled usage. Mr. Jameson, in his elaljorate 
work on The Qonstitutional Convention, in a complete and most satis- 
factory discussion of this subject, lays down these two distinct and 
general principles: 

1. That whenever a constitution needs a general revision a convention is indis- 
pensably necessary ; and if there is contained in the constitution no provision for 
such a body, the calling of one is, in my judgment, directly within the scope of the 
ordinary legislative power. 

2. That were it not a proper exercise of legislative power, the usurpation has 
heen so often committed with the general acquiescence that it is now too late to 
question it as such. It must be laid down as among the established prerogatives 
of our General Assemblies that, the constitution being silent, whenever they deem 
it expedient they may call conventions to revise the fundamental law. 

The convention which assembled in July, 1874, to revise the con- 
stitution of Arkansas was called by a large majority of the people of 
the State, upon the question being regularly and formally submitted 
by the Legislature thereof, in accordance with all former precedents 
and the established usage of the country, and is therefoi-e not only 
not revolutionary, as claimed in the minority report, but is in the 
highest sense constitutional ; and the coustitutiou framed by that 
convention and adopted by the people of the State government or- 
ganized under it are as legitimate and well established as those of 
Illinois or New York. And Mr. Garland, who under this constitu- 
tion was cho.sen by the people, is as regularly and legitimately tbe 
governor of the State, and as much entitled to recognition as such, 
as any other chief executive of any other State. 

As to certain irregularities complained of in the matter of regis- 
tration and of registration and election officers, and of the mode 
provided for the submission of this constitution to the vote of the 
people in the instrument itself, I can only say that they are of very 
2 kS 



18 

slight importance of themselves, and inasmuch as it is not only not 
shown that they did interfere with the popular will, but inasmuch as 
it is positively shown that the general and almost universal will of 
the people has in this whole matter been effected, they do not deserve 
that I should stop to discuss them, and they certainly would consti- 
tute most extraordinary grounds on which to overturn and revolu- 
tionize au established State government. 

It only remains to speak briefly of the constitution itself, which 
was adopted as the fundamental law of the State by the people of 
Arkansas on the 13th day of October, 1874. That in many respects 
it is an improvement on the constitution of 1868, I think no one who 
will examine the two instruments will pretend to deny. It has dimin- 
ished the former number of oiiicials, it has taken away the large ap- 
pointing power before existing in the executive, and has imposed 
restraints as to the imposition of taxation of the greatest importance 
to the people. That it is republican in form, and that in this respect 
it fully meets the requirements of the Constitution that "the United 
. States shall guarantee to every State in this Union a republican form 
of government," is beyond all controversy or question. 

Some of the professions of loyalty contained in the old constitution 
may not be found in the new, but, as the report made m this matter 
states, " the substance has been retained." There is certainly nothing 
in it either monarchical or aristocratic ; and the authority of the 
United States in this guarantee, as Mr. Madison says in No. 43 of the 
Federalist, " extends no further than to a guaran tee of a republican form 
of government, which supposes a pre-existing government of the 
form which is to be guaranteed. As long, therefore, as the existing 
republican forms are continued by the States, they are guaranteed by 
the Federal Constitution. Whenever the States may choose to sub- 
stitute other republican forms, they have the right tj do so and to 
claim the Federal guarantee for the latter. The only restriction im- 
posed on them is that they shall not exchange republican for anti- 
republican constitutions, a restriction which it is pi'esumed will hardly 
be considered a grievance." That this constitution meets in this 
respect every requirement of the Federal Government and that it 
does not conflict with the limitations made by the Constitution of the 
United States and the power of the people "to amend or revise their 
constitutions, as I have said before, is so plain upon its face that no 
one pretends to question it. 

Mr. Speaker, if I have accomplished what I proposed to myself in 
this discussion, I have sliown that the merits of the original contest 
between Mr. Brooks and Mr. Baxter are not subject to decision by 
Congress or the Executive, but must be determined by the proper 
State tribunal ; that this contest has been so decided by the General 
Assembly of the State of Arkansas, which decision has been affirmed by 
its supreme court; that Mr. Baxter was both de facto amide jure gov- 
ernor of the State, and, therefore, jiroperly recognized as such by the 
President ; that he had a full and complete right as governor to issue 
the call for an extraordinary session of the General Assembly, and 
that that body was the duly elected and lawful Legislature of the 
State, being also the only body claiming authority as such, and had 
a full and complete right to submit to the people the question of a 
new constitution ; that the convention to frame such an instrument 
Avas called and acted in accordance with law and usage ; and that 
the constitution framed by them being ratitied by the people became 
their proper and legitimate f inidanicntal law as'much so as the con- 
stitution of any other State, and consequently that the officers elected 



19 

Tinder it by the people are f iilly and completely entitled to recogni- 
tion as snch. 

Moved by what proeess of reasoning, therefore, or influenced by 
what considerations, the President should have sought to reverse his 
opinion, and should have reached the conclusion suggested in his 
message to the Senate of February last, I certainly am at a loss to 
conjecture. 

Under this constitution and the officers chosen by the people in 
accordance therewith, the blessings of peace and good government 
have been restored to Ai'kansas, and anarchy, lawlessness, and blood- 
slied have become things of the past. The people are contented and 
at peace, because they feel that they are living under their own 
laws executed by officers of their own choice. This, Mr. Speaker, 
is, in my judgment, the only key to the difficulties existing in con- 
nection with the reconstructed States of the South. The people who 
live in these States must be trusted, and they must be permitted to 
govern themselves. Harmony can never be restored by arms and 
hostile legislation. Wo should seek to elevate these people and not 
to debase them, to cultivate then- high instincts and manly pride 
and not to humiliate them, to make them in the broadest sense free- 
men and not slaves. Then shall these States be restored to peace, 
and prosperity return to them and to us. 

"What constitutes a State ? 

Not hljili-rais'd battlement or labor'd mound, 
Thick w.iU or moated gate ; 

Not cities proud witli spires and turrets crowu'd ; 
Not V)ays and broad-arm'd ports, 

Where, laugliini; at the storm, rich navies ride ; 
Not starr'd aiid spautjled courts, 

"Where low-brow'dbaseness wafts perfume to pride. 
No ; MEN, liigh-mjnded men. 

With powers as far above dull brutes endued, 
In forest, brake, or den, 

As beasts excel cold rocks and brambles rude ; 
Men, who their duties know. 

But know their rights, and knowing dare maintain, 
Prevent the loug-aim'd blow, 

And crush the tyrant while they rend the chain ; 
These constitute a' State. 

Sir William Jones. 



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